Code of Maryland Regulations
Title 09 - MARYLAND DEPARTMENT OF LABOR
Subtitle 12 - DIVISION OF LABOR AND INDUSTRY
Chapter 09.12.40 - Workplace Fraud
09.12.40.05 - Landscaping Illustrations

Universal Citation: MD Code Reg 09.12.40.05

09.12.40.05. Landscaping Illustrations

A. The illustrations in this regulation provide guidance under the Workplace Fraud Act only and do not apply to any other State or federal law.

B. The illustrations in §§ C-E of this regulation, provide guidance for the landscaping services industry in the application of Labor and Employment Article, § 3-903(c), Annotated Code of Maryland.

C. The JB Landscaping Company (JB) is hired to install the landscaping for a new large housing development. After JB commences work, it determines that it does not have enough employees to complete the job. JB subcontracts some of its work to the Red Company (Red), a smaller landscape company. JB sets the work hours for all workers on the job. Red provides the plants and other necessary tools and equipment for the job. Red maintains its own place of business but does not perform service for more than one person or company at a time. Either JB or Red can end the services at any time. Red pays federal employee taxes. Red is an independent contractor.

D. While working on a large landscaping job with a Friday deadline, the Tree Company (Tree) determines that it needs additional workers to meet that deadline. On Wednesday afternoon, Tree contacts Keith Brown to see if he knows at least five workers who can report to the landscaping job in the morning. Keith Brown engages five other workers to assist with the Tree job. Tree sets the hours, provides the tools and equipment, and frequently inspects the work during the day. Keith Brown does landscaping work but does not have his own business. Tree pays Keith Brown a lump sum, which he distributes to the other workers. Keith Brown and the five other workers are employees of Tree.

E. The Green Company (Green), a landscaping company, is hired to landscape a building complex. Once the work is underway, the owner of the building complex decides to install a pond with a waterfall. Green does not build ponds and waterfalls so it subcontracts that work to the Water Company (Water). Water is licensed to build ponds with waterfalls, and it carries workers' compensation and liability insurance under the company name. Water performs services for more than one person at a time. All equipment and tools necessary for the pond installation are owned by Green. Because of Water's experience in the area, there is no oversight of the daily work by Green. Water is paid by Green at the completion of the job. However, Green is ultimately responsible for the final product if there are any faults or defects in the construction. Water is an independent contractor.

(Regulation .05 adopted effective February 22, 2010 (37:4 Md. R. 340))
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